Kane v. Szymczak

• Decision Date: 26 August 2003
• Docket Number: Record No. 3168-02-2,Record No. 3174-02-2.
• Citation: 585 S.E.2d 349,41 Va. App. 365
• Parties: Laura M. KANE v. Robert W. SZYMCZAK, II. Robert W. Szymczak, II v. Laura M. Kane.
• Court: Virginia Court of Appeals

585 S.E.2d 349

41 Va. App. 365

Laura M. KANE v. Robert W. SZYMCZAK, II.

Robert W. Szymczak, II v. Laura M. Kane.

Record Nos. 3168-02-2, 3174-02-2.

Court of Appeals of Virginia, Alexandria.

August 26, 2003.

Susanne L. Shilling (E. Ryan Meyer; Shilling & Associates, Richmond; E. Ryan Meyer, P.L.L.C., on briefs), for Laura M. Kane.

Present: ELDER, BUMGARDNER and KELSEY, JJ.

KELSEY, Judge.

Laura M. Kane appeals a chancellor's order transferring custody of her two children to their father, Robert W. Szymczak, Kane's former husband. On appeal, Kane has preserved only one issue for consideration: whether the chancellor failed to comply with Code § 20-124.3's requirement that the court "communicate to the parties the basis for the decision either orally or in writing." Szymczak cross appeals, claiming that the trial court erred by not awarding him attorney's fees and by requiring him to pay the guardian ad litem fee in its entirety.

We find that the chancellor's letter opinion does not satisfy Code § 20-124.3, and thus, we remand the case to the trial court to comply with this statutory mandate. We also hold that the chancellor did not abuse his discretion by refusing to award Szymczak attorney's fees and by ordering Szymczak to pay the guardian's fee.

I.

Kane and Szymczak are the divorced parents of two sons. In October 1999, the Chesterfield Circuit Court granted Kane sole custody of the boys. In April 2001, Szymczak petitioned for a change of custody in Chesterfield Juvenile and Domestic Relations District Court. The JDR court ordered joint legal custody with physical custody to Szymczak. Kane appealed the JDR decision to the Chesterfield Circuit Court in November 2001.

On July 26, 2002, the circuit court conducted an ore tenus hearing and received testimony from Kane, Szymczak, and others. In addition, the parties submitted thirty-nine de bene esse depositions, numerous exhibits, and an extensive report from the guardian ad litem. A month later, the chancellor issued a written letter opinion. In it, the chancellor chastised both parents for failing to "shift their priorities from self-interest to the interest of their children." The chancellor also noted that Szymczak "had to be coerced" into recognizing the "needs of the children." With this prodding, the chancellor observed, Szymczak had "seen the light" in the last couple of years. The court then concluded: "The Court has considered all the dictates of § 20-124.3 of the 1950 Code of Virginia (as amended). Further, the Court finds that there has been a material change of circumstances that warrant the Court considering a change in status."

On the best-interests issue, the chancellor's opinion stated: "Based on all the factors that the Court must consider, the Court has determined that sole legal and physical custody should be granted to the defendant, Mr. Szymczak, with visitation to Ms. Kane. The Court places particular emphasis on § 20-124.3(1), (2), (6) and (7)." The chancellor's letter opinion, however, did not state the reasons why any of the statutory factors (including the four of particular importance) favored the requested change in custody.

II.

A.

In her brief on appeal, Kane lists eight questions presented. The argument section of the brief, however, addresses only questions one, two, and seven. Rule 5A:20 requires appellants to brief the "principles of law, the argument, and the authorities relating to each question presented." Questions "unsupported by argument, authority, or citations to the record do not merit appellate consideration." Buchanan v. Buchanan, 14 Va.App. 53, 56, 415 S.E.2d 237, 239 (1992); see also Thomas v. Commonwealth, 38 Va. App. 319, 321 n. 1, 563 S.E.2d 406, 407 n. 1 (2002)

; Bennett v. Commonwealth, 35 Va. App. 442, 452, 546 S.E.2d 209, 213 (2001); Moses v. Commonwealth, 27 Va.App. 293, 297 n. 1, 498 S.E.2d 451, 453 n. 1 (1998). As a result, Kane has waived appellate review of questions three, four, five, six, and eight.

Questions one, two, and seven redundantly contend that the chancellor violated Code § 20-124.3, which requires a trial court deciding a custody and visitation case to "communicate to the parties the basis for the decision either orally or in writing." The chancellor, Kane asserts, inadequately informed her of the basis for his decision. We agree.

Code § 20-124.3 lists various factors a trial court should consider when deciding the "best interests" of the child in a custody and visitation case. In its original form, the statute did not expressly require the trial court to elaborate on its findings or, for that matter, to provide any explanation for its decision. In 1999, however, the General Assembly amended Code § 20-124.3 to direct the trial court to state the "basis for the decision either orally or in writing." This statutory language came verbatim from a recommendation by the Virginia Commission on Youth in its 1999 Study on Joint Custody and Visitation. See House Doc. 24, at 20-21 (1999). The study commission made the recommendation after becoming "acutely aware that some judges across the state may not be clearly or adequately articulating" the reasons for child custody decisions. Id. at 20.

To determine what level of specificity this statutory command requires, we turn to two settled principles of statutory construction.

First, the "words of a statute should be given `their common, ordinary and accepted meaning' absent a contrary intent by the legislature." Mouberry v. Commonwealth, 39 Va.App. 576, 583, 575 S.E.2d 567, 570 (2003) (quoting Germek v. Germek, 34 Va. App. 1, 8, 537 S.E.2d 596, 600 (2000)). Black's Law Dictionary defines "basis" as a "fundamental principle; an underlying condition." Black's Law Dictionary 145 (7th ed. 1999) (definition no. 1). Non-legal dictionaries offer a similar denotation. A basis includes the "supporting element," "foundation," "chief component," or the "essential principle." The American Heritage Dictionary 161 (2d col. ed. 1985). These definitions do not imply a high level of specificity. Instead, they focus on the fundamental or predominating reason or reasons underlying the decision.

Second, we presume that the legislature "chose, with care," the specific words of the statute. Simon v. Forer, 265 Va. 483, 490, 578 S.E.2d 792, 796 (2003) (citation omitted); see alsoAlger v. Commonwealth, 40 Va. App. 89, 92-93, 578 S.E.2d 51, 53 (2003). The act of choosing carefully some words necessarily implies others are omitted with equal care. Here, the use of the expression "basis for the decision" stands in contrast to the better-known phrase "findings of fact and conclusions of law." This expression has been used in many statutory contexts, under both state¹ and federal² law. The latter phrase, unlike the former, describes a comprehensive written or transcribed narrative of all aspects of the decisionmaking process — not just the fundamental or predominating ones. See Interstate Circuit, Inc. v. United States, 304 U.S. 55, 56, 58 S.Ct. 768, 769, 82 L.Ed. 1146 (1938)

("A discussion of portions of the evidence and the court's reasoning in its opinion do not constitute the special and formal findings by which it is the duty of the court appropriately and specifically to determine all the issues which the case presents.").

Guided by these principles, we hold that the 1999 amendment to Code 20-124.3 requires the trial court to identify the fundamental, predominating reason or reason underlying its decision. This level of specificity does not require the chancellor to address all aspects of the decisionmaking process, as one would expect from comprehensive findings of fact and conclusions of law. Nor does the 1999 amendment require the chancellor "to quantify or elaborate exactly what weight or consideration it has given to each of the statutory factors." Sullivan v. Knick, 38 Va.App. 773, 783, 568 S.E.2d 430, 435 (2002) (citation omitted); see also Goodhand v. Kildoo, 37 Va.App. 591, 600, 560 S.E.2d 463, 467 (2002)

; Joynes v. Payne, 36 Va.App. 401, 416, 551 S.E.2d 10, 17 (2001).

That said, the statutory command cannot be satisfied by formulaic and generalized explanations such as "I've considered all the factors and I rule thus and such" or "the best-interest test generally favors this or that party." It begs the question to say that identifying the statutory factors (either altogether or some subset of them) is the same as communicating the "basis" for the decision. The statutory factors merely list topical issues for consideration. They become reasons for a particular decision only when one knows why the factors support the decision. To satisfy Code § 20-424.3, therefore, the trial court must provide a case-specific explanation (one that finds its contextual meaning from the evidence before the court) of the fundamental, predominating reason or reasons for the decision.

In this case, the decision at issue involves changing a prior custody order. "The test to be met `has two prongs: first, has there been a change in circumstances since the most recent custody award; second, would a change in custody be in the best interests of the children.'" Hughes v. Hughes, 33 Va.App. 160, 165, 531 S.E.2d 654, 656 (2000), aff'd en banc, 35 Va.App. 376, 545 S.E.2d 556 (2001)

(quoting Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983)).

Because the chancellor did not announce his decision from the bench, we look to his letter opinion. In it, he makes general remarks about both parties and their mutual antagonism. The only comment suggesting a change of circumstances involves the observation that, despite Szymczak's earlier disinterested attitude, he had "seen the light" in recent years. The chancellor then concludes: "The Court has considered all the dictates of § 20-124.3 of the 1950 Code of Virginia (as amended). Further, the Court finds that there has been a material change of circumstances that warrant[s] the Court considering a change in status." On the...